Citation Nr: 0845095
Decision Date: 12/31/08 Archive Date: 01/07/09
DOCKET NO. 07-36 660 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Anchorage,
Alaska
THE ISSUES
1. Whether new and material evidence has been received to
reopen a claim for service connection for sleep apnea.
2. Entitlement to service connection for left
sternoclavicular osteomyelitis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
B. Morton, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1970 to August
1999.
This matter is before the Board of Veterans' Appeals (Board)
from a January 2006 decision by the Department of Veterans
Affairs (VA) Regional Office (RO) in Anchorage, Alaska,
which, relevant to the instant appeal, denied service
connection for sternoclavicular osteomyelitis and declined to
reopen a claim for service connection for sleep apnea. The
RO issued a notice of the decision in February 2006.
Thereafter, in June 2006, the RO issued another decision and
notice of decision, which, in relevant part, continued the
denial of service connection for sternoclavicular
osteomyelitis and declined to reopen the veteran's claim for
service connection for sleep apnea. At this time, the RO
also denied service connection for restless leg syndrome
(RLS). The veteran timely filed a Notice of Disagreement
(NOD) in April 2007 as to these three issues, and
subsequently, in September 2007 the RO provided a Statement
of the Case (SOC). Thereafter, in November 2007, the veteran
timely filed a substantive appeal only as to the issues of
entitlement to service connection for sternoclavicular
osteomyelitis and the application to reopen a claim for
service connection for sleep apnea. He did not appeal the
denial of service connection for restless leg syndrome, and
therefore this issue is not in appellate status. See 38
C.F.R. § 20.302; see also Veteran's November 2007 Brief ("we
are submitting the attached material in support of the
pending appeal for benefits . . . . [e]ntitlement to service
connection for Sternoclavicular Osteomyelitis [and] [w]hether
new and material evidence for sleep apnea has been
submitted"); November 2007 VA Form 9 (indicating that the
veteran wished to appeal only sternoclavicular osteomyelitis
and whether new and material evidence was sufficient to
reopen the claim for sleep apnea).
The veteran requested a Travel Board hearing on these
matters, which was held in May 2008 where the veteran
presented as a witness before the undersigned veterans law
judge. A transcript of the hearing is of record.
In a May 2008 document, the veteran relinquished his right to
have the RO consider, in the first instance, any additional
evidence offered. The Board accepts this as a valid waiver
of initial RO consideration of the new evidence submitted.
38 C.F.R. § 20.1304(c).
With respect to the veteran's claim for service connection
for left sternoclavicular osteomyelitis, this aspect of the
appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required on his part.
FINDINGS OF FACT
1. The RO denied the veteran's claim for service connection
for sleep apnea in a January 2004 decision; the veteran
did not timely appeal that decision.
2. The evidence submitted since the January 2004 decision
consists of a May 2008 letter from the veteran's wife
wherein she stated that since 1987 to present she has
observed that the veteran snores when sleeping and has
irregular breathing patterns, where he skips a breath.
3. The veteran currently has a diagnosis of sleep apnea, and
he has offered credible evidence demonstrating that he
incurred this disorder during service and that it has
continued since that time.
CONCLUSIONS OF LAW
1. The January 2004 RO decision that denied the veteran's
service connection claim for a sleep apnea is final. 38
U.S.C.A. § 7105 (West 2002 & Supp. 2008); 38 C.F.R. §§
3.104, 20.1103 (2008).
2. Because at least some of the evidence presented since the
January 2004 RO decision is new and material, the claim
for service connection for sleep apnea is reopened. 38
U.S.C.A. § 5108 (West 2002 & Supp. 2008); 38 C.F.R. §§
3.104, 3.156(a) (2008).
3. Service connection for sleep apnea is warranted.
38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002) 38 C.F.R. §§
3.102, 3.303 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Veterans Claims Assistance Act of 2000 (VCAA)
The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107 (West 2002) significantly changed the law
prior to the pendency of these claims. VA has issued final
regulations to implement these statutory changes. See 38
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2005). The VCAA
provisions include an enhanced duty to notify a claimant as
to the information and evidence necessary to substantiate a
claim for VA benefits, and they redefine the obligations of
VA with respect to the duty to assist the veteran with his
claim.
Because the Board has rendered a decision in favor of the
veteran, finding that the new and material evidence has been
received to reopen the claim for service connection for sleep
apnea and has granted entitlement on the merits, a further
discussion of the VCAA duties as to this issue is unnecessary
at this time.
II. New & Material Evidence
a. Law and Regulations
If a veteran does not file a timely notice of disagreement
with the RO decision within the applicable time period, 38
U.S.C.A. § 7105(c) provides that such a decision "shall
become final and the claim will not thereafter be reopened or
allowed. . . ." 38 U.S.C.A. § 5108, however, provides an
exception to this rule by requiring the Secretary to reopen a
claim that has been finally decided and previously disallowed
"[i]f new and material evidence is presented or secured"
with respect to the claim. Fortuck v. Principi, 17 Vet. App.
173, 178 (2003) ("The Secretary must reopen a previously and
finally disallowed claim when 'new and material evidence' is
presented or secured"); accord 38 C.F.R. § 3.156(a) ("A
claimant may reopen a finally adjudicated claim by submitting
new and material evidence").
The Board notes that the veteran filed his January 2006 claim
that is the subject of this appeal after August 29, 2001, the
effective date of the current version of 38 C.F.R. §
3.156(a), which sets forth the standard for "new and
material" evidence. See Rodriguez v. Nicholson, 19 Vet.
App. 275, 289 (2005) (recognizing that the 2001 amendment to
§ 3.156(a), which made the "new and material evidence"
standard more stringent, applies to "any claim for benefits
received by VA on or after August 29, 2001"). Accordingly,
the 2001 amended version of 38 C.F.R. § 3.156(a) controls in
the present case.
Section 3.156(a) defines "new" evidence as "existing
evidence not previously submitted to agency decisionmakers."
Thus, "[i]f the evidence was not in the record at the time
of the final disallowance of the claim and is not cumulative
of other evidence in the record, it is new." Fortuck, 17
Vet. App. at 178. "Material" evidence, in contrast, is
"existing evidence that, by itself or when considered with
previous evidence of record, relates to an unestablished fact
necessary to substantiate the claim." 38 C.F.R. § 3.156(a).
"New" and "material" evidence may not "be cumulative or
redundant of the evidence of record at the time of the last
prior final denial of the claim sought to be reopened, and
must raise a reasonable possibility of substantiating the
claim." 38 C.F.R. § 3.156(a). In determining whether new
and material evidence exists, the Board must "presume the
credibility of the evidence and may not decline to reopen a
claim for lack of new and material evidence merely because
the proffered evidence is found to lack credibility."
Fortuck, supra, at 179. In addition, "[i]n order to warrant
reopening a previously and finally disallowed claim, the
newly presented or secured evidence . . . must tend to prove
the merits of the claim as to each essential element that was
a specified basis for that last final disallowance of the
claim." Evans v. West, 9 Vet. App. 273, 284 (1996)
(Emphasis added). That is, "the newly presented evidence
need not be probative of all elements required to award the
claim . . . but need be probative only as to each element
that was a specified basis for that last disallowance." Id.
If the Board determines that the veteran has submitted new
and material evidence, it must then "review the new evidence
'in the context of' the old to determine whether the prior
disposition of the claim should be altered." Godfrey v.
Brown, 7 Vet. App. 398, 405 (1995); accord Anderson v. Brown,
9 Vet. App. 542, 546 (1996) (noting that, upon a finding that
the veteran has presented new and material evidence, the
Board "must reopen the claim and 'evaluate the merits of the
veteran's claim in light of all the evidence, both new and
old.' Masors v. Derwinski, 2 Vet. App. 181, 185 (1992)").
b. Analysis
In January 2004, the RO, after considering the veteran's
service medical records, a statement from him, and post-
service medical records, denied his service connection claim
for sleep apnea. The RO supplied a notice of this adverse
decision in January 2004, which also apprised the veteran of
his appellate rights. The veteran thereafter submitted an
NOD with that determination, but he did so in April 2005,
more than one year after the date of the January 2004
notification letter. See 38 C.F.R. § 20.302(a) (noting that
a claimant "must file a Notice of Disagreement with a
determination by the [RO] within one year from the date that
[the RO] mails notice of the determination to him . . . .").
As such, the Board determines that the January 2004 RO
decision qualifies as a "final" decision within the meaning
of 38 U.S.C.A. § 7105(c). The Board, therefore, lacks
jurisdiction to entertain the veteran's January 2006 claim
for service connection sleep apnea, unless, pursuant to 38
U.S.C.A. § 5108 and 38 C.F.R. § 3.156(a), he supplies new and
material evidence with respect to this claim.
In the instant case, the post-January 2004 record reveals the
submission of a May 2008 letter from the veteran's wife,
where she stated that she noticed the veteran's snoring and
irregular breathing patterns during his period of active
service in 1987, and that such irregularity in breathing had
continued since that time to present. The Board determines
that this statement constitutes new and material evidence.
The statement qualifies as "new" because it did not exist
on the record during or prior to the January 2004 decision,
and is neither cumulative nor redundant of evidence already
of record, as it offers corroboration of the presence of
abnormal breathing symptoms when sleeping during the
veteran's period of active service. The account qualifies as
"material," as it relates to an unestablished fact
necessary to substantiate the claim and further tends to
raise a reasonable possibility of substantiating the claim;
that is, the statement of the veteran's wife appears to
verify that he had a breathing abnormality when he slept,
which began during his period of active service and which has
persisted to present. In light of this evidence, therefore,
the Board reopens this claim.
Because the Board has reopened the claim, it must make a
determination on the merits and "review the new evidence 'in
the context of' the old to determine whether the prior
disposition of the claim should be altered." Godfrey, 7
Vet. App. at 405; accord Anderson, 9 Vet. App. at 546. Part
III addresses this issue.
III. Service Connection
a. Law & Regulations
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in the line of duty, or from aggravation of a preexisting
injury suffered or disease contracted in line of duty. See
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
Service connection generally requires evidence of a current
disability with a relationship or connection to an injury or
disease or some other manifestation of the disability during
service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir.
2000). Where the determinative issue involves medical
causation or a medical diagnosis, there must be competent
medical evidence to the effect that the claim is plausible;
lay assertions of medical status do not constitute competent
medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93
(1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95
(1992).
A disability may be service connected if the evidence of
record reveals that the veteran currently has a disability
that was chronic in service or, if not chronic, that was seen
in service with continuity of symptomatology demonstrated
thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet.
App. 488, 494-97 (1997). Evidence that relates the current
disability to service must be medical unless it relates to a
disability that may be competently demonstrated by lay
observation. Savage, 10 Vet. App. at 495-97. For the
showing of chronic disease in service, there is required a
combination of manifestations sufficient to identify the
disease entity, and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or a diagnosis including the word "chronic." 38
C.F.R. § 3.303(b). Disorders diagnosed after discharge may
still be service connected if all the evidence, including
pertinent service records, establishes that the disability
was incurred in service. 38 C.F.R. § 3.303(d).
38 U.S.C.A. § 5107 sets forth the standard of proof applied
in decisions on claims for veterans' benefits. A veteran
will receive the benefit of the doubt when an approximate
balance of positive and negative evidence exists. 38
U.S.C.A. § 5107; 38 C.F.R. § 3.102. Thus, when a veteran
seeks benefits and the evidence is in relative equipoise, the
veteran prevails. Wells v. Principi, 18 Vet. App. 33, 36
(2004); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). A
claim will be denied only if a preponderance of the evidence
is against the claim. See Alemany v. Brown, 9 Vet. App. 518,
519-20 (1996).
b. Factual Background
In the veteran's July 1970 Report of Medical History for
Enlistment, he indicated that he did not have frequent
trouble sleeping, and his companion Report of Medical
Examination for Enlistment bears no indication of a sleep
disorder upon service entry.
A May 2004 polysomnography report diagnosed the veteran with
mild obstructive sleep apnea.
At his May 2008 Travel Board hearing, the veteran testified
that he had symptoms of snoring and fatigue, which had begun
in 1987 and continued to present. Hearing Transcript at 8-
11. He indicated that although he had these symptoms for
some thirty years, he did not know or realize that this
constituted sleep apnea until recently. Hearing Transcript
at 14-15. The veteran reported not sleeping well and feeling
tired. Hearing Transcript at 16.
Also in May 2008, and as noted above, the veteran's wife of
34 years submitted a letter in support of the veteran's
claim. She indicated that she observed the veteran having
snoring problems and irregular breathing during sleep from
1987 to present. By her account, the veteran would take long
breaths and then skip breaths, and she expressed fear that he
might stop breathing.
c. Discussion
The Board determines that the positive and negative evidence
is at least in equipoise and therefore supports the veteran's
claim for service connection for sleep apnea. The May 2004
polysomnography report confirms a current diagnosis of mild
obstructive sleep apnea. Additionally, the veteran has
credibly testified, and his wife has corroborated, that he
began to experience snoring and abnormal breathing patterns
consistent with this disorder during his period of active
service in 1987, and that these symptoms have continued since
that time to present. Jandreau v. Nicholson, 492 F.3d 1372,
1377 (Fed. Cir. 2007); Washington v. Nicholson, 21 Vet. App.
191, 195 (2007) (noting that a layperson "is competent to
provide information regarding visible, or otherwise
observable, symptoms of disability"); see Hearing Transcript
at 8-11, 14-15; May 2008 Statement by Veteran's Wife.
Although the Board recognizes that the veteran did not
receive a medical diagnosis of sleep apnea during his period
of active service, these lay accounts, in addition to the
fact that the veteran received the diagnosis of sleep apnea
in relatively close proximity to his 1999 service discharge,
after almost 30 years of active duty, weigh in favor of the
claim. With application of the doctrine of reasonable doubt
(38 U.S.C.A. § 5107(b)), the Board finds that service
connection for sleep apnea is warranted.
ORDER
Having submitted both new and material evidence, the claim
for service connection for sleep apnea is reopened.
Service connection for sleep apnea is granted.
REMAND
The Board finds that additional development is warranted to
address the merits of the veteran's claim for service
connection for left sternoclavicular osteomyelitis. 38
C.F.R. § 19.9 (2007). In particular, the Board notes that he
received treatment for and a diagnosis of this disorder in
September 2000, shortly after his August 1999 service
discharge, and he reported initially feeling a lump in this
region prior to the actual diagnosis in May 2000.
Additionally, although the veteran's service medical records
do not reveal a diagnosis of left sternoclavicular
osteomyelitis, they do note that the veteran complained of
left shoulder pain and was diagnosed with a left triceps
ligamentous strain in October 1970. At his May 2008 Travel
Board hearing, and as reflected in June 2001 VA medical
report, the veteran reiterated that he received a diagnosis
of shoulder strain during his period of active service in the
1970s to early 1980s. Hearing Transcript at 14. Such
evidence leaves the Board to question whether the in-service
left shoulder injury may have a causal connection to the
subsequently diagnosed, post-service left sternoclavicular
osteomyelitis. Accordingly, the Board determines that a VA
examination, complete with medical nexus opinion, is
required. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006);
accord 38 C.F.R. 3.159(c)(4).
Accordingly, the case is remanded for the following action:
1. The AMC/RO must review the record and
ensure compliance with all notice and
assistance requirements set forth in the
Veterans Claims Assistance Act of 2000
(VCAA). See 38 U.S.C.A. §§ 5102, 5103,
5103A, 5107 (West 2002); 38 C.F.R. §
3.159 (2007). Notice consistent with 38
U.S.C.A § 5103(a) and 38 C.F.R. §
3.159(b)(1) with respect to the claims
must:
(a) inform the claimant about the
information and evidence not of record
that is necessary to substantiate the
claim for the benefit sought; (b) inform
the claimant about the information and
evidence that VA will seek to provide;
and (c) inform the claimant about the
information and evidence the claimant is
expected to provide.
The AMC/RO should provide the veteran
with VCAA notice under 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b), that
includes an explanation as to the
information or evidence needed to
establish ratings and effective dates for
the benefit sought as outlined by the
Court of Appeals for Veterans Claims in
Dingess v. Nicholson, 19 Vet. App. 473,
484, 486 (2006).
2. The veteran must be afforded a VA
medical examination for the purpose of
determining the likely etiology of his
diagnosed left sternoclavicular
osteomyelitis. The examiner should
review relevant portions of the claims
file and indicate as such in the
examination report.
Following a review of the relevant
medical evidence in the claims file,
obtaining a history from the veteran, the
physical examination, any laboratory
tests that are deemed necessary, and any
additional specialty examinations that
are warranted, the clinician is requested
to answer the following questions:
Is it at least as likely as not (50
percent or greater probability)
that the veteran's current left
sternoclavicular osteomyelitis and
any residuals thereof is causally
related to his period of active
service or any incident thereof, to
include a documented in-service
injury to the left shoulder?
The clinician is advised that the term
"as likely as not" does not mean within
the realm of possibility. Rather, it
means that the weight of medical evidence
both for and against a conclusion is so
evenly divided that it is medically sound
to find in favor of causation as to find
against causation. More likely and as
likely support the contended causal
relationship; less likely weighs against
the claim.
The examiner is also requested to provide
a rationale for any opinion expressed.
The clinician is advised that if a
conclusion cannot be reached without
resort to speculation, s/he should so
indicate in the examination report.
3. Then, after completion of any other
notice or development indicated by the
state of the record, with consideration
of all evidence added to the record
subsequent to the last SSOC, the AMC/RO
must readjudicate the veteran's claim.
If the claim remains denied, the AMC/RO
should issue an appropriate SSOC and
provide an opportunity to respond.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369, 370 (1999) (per
curiam).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112.
____________________________________________
R. F. WILLIAMS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs